IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1318 of 2006()
1. K.V.M.PREMAN,
... Petitioner
Vs
1. UNITED INDIA INSURANCE CO. LTD.,
... Respondent
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent :SRI.JOHN JOSEPH VETTIKAD
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :12/02/2009
O R D E R
R. BASANT &
P.R. RAMACHANDRA MENON, JJ.
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M.A.C.A. No. 1318 OF 2006
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Dated this the 12th February , 2009
J U D G M E N T
Basant, J. :
The claimant before the Tribunal is the appellant before us.
He claimed an amount of Rs. 1,60,000/- as compensation for the
personal injuries suffered by him in a motor accident. By the
impugned award, the Tribunal awarded only an amount of Rs.
49,750/- as compensation, as per the details precisely shown in
paragraph No.10 of the award.
2. The claimant is a Government employee. He was
drawing a monthly salary of Rs. 2722/- at the relevant time.
He suffered fracture of the right elbow. For 19 days he was an
inpatient in the hospital. Two surgeries had to be undergone. He
had allegedly suffered permanent disability also. It is alleged
that he has suffered permanent physical disability to the extent
of 40%.
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3. The claimant/appellant examined himself as P.W.1.
Exts. A1 to A6 were marked. The Tribunal was not prepared to
accept that 40% disability has been suffered by the claimant. A
certificate was issued by the medical board without a reference
by the Tribunal to the medical board. The Tribunal was not
satisfied that 40% disability could have been suffered as a
result of the fracture of elbow, as seen from the discharge
summary. The Tribunal, in these circumstances, reckoned only
5% as the physical disability admissible. On that basis, adopting
the multiplier- multiplicand method, the loss of earning capacity
was fixed at Rs. 26,131/-.
4. The appellant claims to be aggrieved by the quantum
fixed. Called upon to explain the nature of the specific challenge
against the award, the learned counsel for the claimant/appellant
submits that the Tribunal has erred grossly in not accepting the
disability certificate to conclude that 40% disability has been
suffered by the claimant/appellant. We are in complete
agreement with the Tribunal. Considering the nature of the
injuries as seen from the earlier medical records, the burden was
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heavy on the claimant/appellant to prove that he had suffered
disability of 40% on account of such injuries suffered in the
accident. No satisfactory proof of the disability certificate was
even attempted and no reasons are forthcoming to explain such
a crucial omission. In the circumstances of the case, we are
satisfied that the Tribunal has not committed any error in
reckoning the disability at 5%. On the materials available before
the Tribunal, a better conclusion in favour of the appellant
appears to us to be impossible. We also take note of the fact
that though the appellant has not suffered any reduction in
earning capacity, the Tribunal had adopted the multiplier-
multiplicand method to assess the loss of earning capacity. Even
assuming that the appellant does not immediately suffer any loss
of earning consequent to the disability, considering the nature of
the alleged disability and the nature of the employment of the
appellant, he would certainly be forced to strain himself more to
produce the same out-come of work as he was doing hitherto
after suffering that disability. The impairment of the prospects
of his past retirement employment must also be taken note of.
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Taking all these into consideration, we are persuaded to agree
that the amount of Rs. 26,131/- awarded by the Tribunal towards
loss of earning capacity is fair, just and reasonable and does
not, at any rate, require upward modification.
5. Learned counsel for the appellant raised two more
grounds. It is submitted that considering the nature of the
injuries , period of hospitalisation and procedures undergone, the
amount of Rs. 6,000/- awarded under the head-‘pain and
suffering’, is inadequate. We are persuaded to agree with that
contention. We are satisfied that an amount of Rs.10,000/-
(Rupees ten thousand only) in all, i.e., Rs.4,000/- (Rupees four
thousand only) more can safely be awarded under the
head-‘pain and suffering’.
6. Learned counsel for the appellant further points out that
the 37 year old appellant, who had suffered disability, which the
Tribunal has accepted, must certainly be held to have suffered
reduction/impairment in the quality of life which he can aspire to
enjoy. The disability suffered must certainly have brought down
the quality of enjoyment of life. This aspect has not been taken
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into consideration by the Tribunal and no amount has been
awarded under the head-‘loss of amenities of life’, contends the
learned counsel. We are satisfied that the said omission
deserves to be corrected in this appeal. We are satisfied that
the award of an amount of Rs.10,000/- (Rupees ten thousand
only) under this head shall also meet the ends of justice.
7. The above discussions lead us to the conclusion that the
appellant is entitled for a further amount of Rs.14,000/- (Rupees
fourteen thousand only) in all, as per the details shown above, in
addition to the amount already awarded by the Tribunal.
8. The Tribunal has awarded interest at differential rates
for different periods. We are satisfied that the said awarding of
interest at different rates for different periods is justified in the
facts and circumstances of the case. But the award of only 6%
interest per annum for the period from 28.01.2005 till the date
of realisation does not appear to us to be justified. We accept
the contention of the learned counsel that interest at least at the
rate of 7.5% per annum must have been awarded for the period
from 28.01.2005 till the date of realisation.
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In the result:
(i) The appeal is allowed in part to the above extent.
(ii) It is held that the appellant is entitled for a further
amount of Rs.14,000/- (Rupees fourteen thousand only).
(iii) It is further directed that interest shall be payable on
the entire amount till 21.06.1996 at the rates already directed
by the Tribunal and that for the period from 28.01.2005, the
interest shall be paid on the whole amount at the rate of 7.5%
per annum.
R. BASANT,
JUDGE.
P.R. RAMACHANDRA MENON,
JUDGE.
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